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widow of Morley for his selection, but only one of them, namely, the promissory note, was mentioned in the schedule to the memorandum of deposit; the Lloyd's bond was not mentioned.

In this state of circumstances, Mr. Underwood and Mr. James Whittle Godber, as the executors of Robert Giber, claim in the first place a general lien upon all the deeds in the possession of Morley at the time when this deposit of deeds took place; they also claim a particular lien on the promissory note, and also on the Lloyd's boud, as having been given by Hickling in order to secure the amount which was originally due from him on the said mortgage debt of 6001.

I am of opinion that these gentlemen have not any lien, either upon the promissory note or upon the Lloyd's bond. It is quite obvious that they refused the security at the time when it was offered, and that Morley, in the conversation of February, 1864, referred to this fact, and stated that he had managed it, or would manage it, in another way. But I think they are entitled to a general lien on the deeds of Morley, the testator, of which he was possessed at the time, sabject to the lien of Mr. Underwood on the deeds which I mentioned in the first case. It was argued in opposition to this, that such a lien could only be constituted by the actual deposit of the deeds, and that ao such deposit was made or existed in this case; but I think that there was an actual deposit in this case, by the circumstance that the deeds were deposited in the box, which was the property of the executors of Robert Godber, and from which, without their sanction, Morley was not entitled as their solicitor to remove them. If the deeds had remained in the box, and had been found there after the death of Morley, it would, in my opinion, have been impossible reasonably to contend that the deposit had not been made. The fact that the box was afterwards opened by Morley does not, in my opinion, alter the case. Whether it had or had not been left in his custody as their solicitor; whether it had or had not been locked, and the key retained by the executors; whether it had or had not been forcibly opened by Morley, or simply unlocked by Morley, and the deeds abstracted by him or by any other person, either with or without his concurrence: in all and every one of these cases it seems to me that the consequence is the same, and that the accidental or improper removal of the deeds by Morley or by a stranger would not take away or derogate from the validity of the deposit made by him, on the faith of which the executors of Robert Godber, it must be assumed, as is probably the fact, abstained from taking compulsory measures against Morley to obtain payment of, or satisfactory security for, the money due.

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ceive nor pay costs, and that the other companies should pay the costs in seventeenths.

Petition by the Ecclesiastical Commissioners to have transferred and paid to them out of court several sums of stock and dividends standing to the account of the Archbishop of Canterbury, ex parte the respondents (of whom there were several), and which represented court in respect of lands belonging to the see of Canvarious sums of money which had been paid into terbury, and which had from time to time been, under certain statutory powers, taken by the respondents.

It appeared that upon the death of the late Archbelonging to the see of Canterbury became, by the bishop, all the lands, hereditaments, and emoluments operation of the 23 & 24 Vict. c. 124, s. 2, vested in the Ecclesiastical Commissioners. The respondState for War, the Copyhold Commissioners, their ents, numbering seventeen, were, the Secretary of and certain public companies, four of which, under special acts of Parliament (not incorporated with the Lands Clauses Consolidation Act), were required, where they had purchased lands, and the purchase vested in land, to pay the costs incident to the promoney had been paid into court, and then reinceedings. The acts, however, contained no provision for the payment of costs in cases where the purchase money had been paid to the parties entitled. The special acts of the other companies had either the Lands Clauses Consolidation Act incorporated with them, or a provision to the same effect as that contained in the 80th section of that act. The Secretary of State for War and the Copyhold Commissioners not being liable to pay any part of the costs, the petitioners prayed that the costs might be paid by the fifteen companies in certain proportions.

had discretionary power to order the payment to be Morgan, for the petitioners, contended that the Court borne equally by all the companies. The payment to the petitioners might be considered as a reinvestment, their hands was left by the act of Parliament quite as their powers in respect of all moneys coming into uncontrolled. [He cited Ex parte The Bishop of London (2 De G., J., & F. 14).]

whose acts were not incorporated with the Lands Briggs and Bardswell, for three of the companies Clauses Consolidation Act, referred to the cases of In re Gould (24 Beav. 442); Ex parte Molyneux (2 Coll. 273); and In re Ellison (8 De G., Mac., & G. 62), and submitted that they were not liable to pay costs.

Karslake, for the fourth company in the same category, mentioned that the purchase moneys had originally been paid into the Court of Exchequer, and subsequently transferred into this Court, and contended, that whatever might have been the former practice, this company could not now be required to pay any costs.

Elphinstone, Marten, and W. W. Cooper, for three of the companies who had paid in the sums of 137., 291., and 441., submitted that these proceedings were unnecessary, and that the proper course would have been by summons in chambers. (Ex parte The Incumbent of Guilden Sutton, 8 De G., Mac., & G. 380).

Roupell, L. Bird, Taylor, Kay, and A. G. White, were for other respondents.

Morgan replied, and contended that it was necessary to bring the matter into court, in order that those who claimed might prove their title. (In re Robertson, 23 Beav. 433; In re Tiverton Market Act, 26 Beav.

Sains of money were paid into court for lands belonging to the see of Canterbury, taken by the Secretary of State for War, the Copyhold Commissioners (who were not liable to pay any costs), and fifteen public companies, of which four, by their acts, had not been incorporated with the Lands Clauses Consolidation Act, and eleven had been incorporated with that act. The Ecclesiastical | 239). Commissioners petitioned to have the funds transferred Sir J. STUART, V. C., said, that as no specific purand paid to them, and the costs paid by all the com- chase with the moneys now asked to be paid out of panies; but the Court ordered that the four companies court was contemplated, he felt himself bound to folnot incorporated, as above mentioned, should neither re-low the decision of In re Ellison, and to treat this as a

Note for reference-Morg. Ch. Acts, 46.

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case where there had been no reinvestment in land. | my invention is to avoid such injurious consequences But for that case, which was decided by the Lords to the straw and grain to a greater extent than has Justices, and if he had jurisdiction, he would have al- hitherto been done; for this purpose I construct a lowed the petitioners their costs as against all the thrashing machine with grooves or channels in the companies, and he regretted that it was not in his surfaces of the beater, by which the corn is beaten power to do so. This Court was not bound in matters out; such grooves or channels being of suitable diwhich had been transferred to it from the Court of mensions to allow of the corn or straw lodging therein, Exchequer, to follow the old practice of that Court, and passing through without being injured by the action as had been argued. The declaration would be, that of the surfaces between, and by which the corn is beaten the four companies, whose acts had not been incor- out, and separated from the chaff. . . . The revolving porated with the Lands Clauses Consolidation Act, beater or drum in my thrashing machine consists, as in and provided only for charging them with costs in machines of the ordinary construction, of several loncases of reinvestment in land, should neither pay nor gitudinal bars, firmly attached to arms or spokes, or to receive the costs of this application; and that the other the periphery of wheels affixed to a central shaft or eleven companies should pay their shares of the costs axis, with which the beater or drum revolves. . ... in seventeenths. On the external or beating surface of these longitudinal bars are grooves or channels. These may be produced either by a grooved plate of iron securely fixed to the face of the longitudinal bars, or by winding iron wire about the bar. The depth and width of the grooves or channels may be varied, according to the nature of the grain to be thrashed, and the general construction and arrangement of the other parts of the machine, and the method of driving it, may be the same as in ordinary thrashing machines. I prefer, however, that the roof should be perforated, so as to admit of the passage of the grain and the chaff, thus facilitating their separation from the strainer. . . The various parts of the thrashing machine are well known. I wish it to be understood, therefore, that I do not lay claim to the exclusive use of these several parts, except when employed in connexion with, and for the purposes of, my invention; and I hereby declare that I claim as of my invention a thrashing machine, in which the surface of the beaters is grooved or channelled, and the roof perforated as above described." These beaters were applied in sets of six or eight to each thrashing machine.

VICE-CHANCELLOR WOOD'S COURT. GOUCHER v. CLAYTON.-Jan. 16, 17, 18, 21, 23, 24, and 28, and Feb. 9.

Patent

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Infringement

Exportation-Construction of license-Pleading-Supplemental bill. Though the manufacture in this country of the several parts of a patented machine, and the exportation of those parts, may not be an infringement of the patent, the machine being the novelty, and the parts being old, it is otherwise where the part exported is itself the patented

invention. The patentee of an invention for improved beaters for thrashing machines, granted a license to the defendants to make, manufacture, and sell machines, as described in the specification, for a term of years, and during the same period to apply the invention to other machines made, or to be made, paying a royalty of 11. for every thrashing machine manufactured by them, and the like sum for every machine made, or to be made, to which the invention should be wholly or in part applied by them; and the defendants covenanted to affix royalty plates to every new and altered machine which should be manufactured or applied by them:-Held, that the defendants were not intended to pay royalty merely on every thrashing machine, but that the true construction of the license was, that they were to pay on all beaters manufactured by them according to the patent, and applied to machines originally, or by way of renewal. Plaintiff held justified in filing a supplemental bill for the purpose of putting new matter in issue, which supported the case made by the original bill, but was discovered too late to be brought forward by way of

amendment.

Motion for decree.-These suits (by original and supplemental bill) were brought by John Goucher as a patentee, against the members of the firm of Messrs. Clayton, Shuttleworth, & Co., engineers and agricultural machine makers, at Lincoln, for an account under a license granted to them to use the patent, and for an injunction to restrain the infringement of it by them; and also for an account as incidental to the injunction, and for damages. The following were the facts:

Letters-patent were, on the 25th November, 1848, granted to the plaintiff for an invention consisting of improvements in beaters for thrashing machines, and an extension of the patent for the further term of three years was obtained by him from the Privy Council in the year 1862. The specification was, so far as material, as follows:-" In the thrashing machine, as usually constructed, the straw and grain becomes crushed or broken. Now, the object of

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In 1854 the then members of the firm of Messrs.

Clayton & Co. exhibited machines fitted with these beaters at an agricultural show in Lincoln. The plaintiff brought an action at law against them for the infringement, and they submitted to give judg ment for 40s. damages, and costs of suit, and immediately afterwards took a license from the plaintiff to use his invention.

This license was granted by an indenture, dated the 15th November, 1854, whereby, after reciting the letters-patent, and that the plaintiff was the truc and first inventor of the invention as described by the specification, the plaintiff granted to the person for the time being forming the partners in the firm of Clayton, Shuttleworth, & Co., license for five year to make, manufacture, and sell machines as describe in the specification, and during the same period to apply the invention to other machines already made or thereafter to be made, reserving to the plain tiff certain rights, and yielding and paying to him his executors, administrators, and assigns, Il. sterling for every thrashing machine which, during the term should be manufactured by the defendants, or any person in partnership with them; and the like sum of 17. sterling for every machine, either already made or thereafter to be made, to which, during the said term of five years, the invention should be wholly or part applied by them, or any of them; such rentto be paid quarterly. And Messrs. Clayton & Co covenanted, during the five years, not to manufac ture or vend any new machine for thrashing corn, make any alteration in the construction of any cor thrashing machine whatsoever already made, or which during the term of five years, should be thereafter manufactured, unless the invention should be wholly

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stand over till the hearing; and the plaintiff waived any answer from the defendants.

Notice of motion for a decree was given, and the plaintiff's evidence filed in support of it, on the 10th May, 1864, but the plaintiff for the first time, on the 15th July, 1864, obtained clear evidence that the defendants were selling his beaters, notwithstanding the expiration of the license. He therefore filed the second bill on the 27th July, 1864, praying an injunction, and account, and damages, and also that, if necessary, that suit might be taken as supplemental.

or in part applied to such new or altered machine; but if the owner of any such machine should refuse to have the patent beater applied, then they were to be at liberty to omit the same, paying nevertheless the sum of 11. to the plaintiff for any new machine, but not for any altered machine. And they also covenanted to cause each and every such new and altered machine to be stamped with numbers, in regular progression, denoting the total number of machines which should from time to time, during the term, have been so manufactured and applied as aforesaid; and for the purpose of affixing such numbers, every machine so applied should be treated as a newly manufactured machine, A motion for an injunction in this supplemental and to cause metal plates supplied by the plaintiff to suit was made by special leave in the vacation, before be affixed to each and every machine which should be Vice-Chancellor Kindersley, but stood over without 80 manufactured or applied by them, and to deliver up prejudice to any question, the defendants undertaking to the plaintiff every quarter all such of the said plates to keep an account, and on the 11th November, 1864, as should not have been so used as aforesaid; and that on the defendants continuing their undertaking, withthe number of plates which should have been so sup-out prejudice to their claim to the costs of the motion, plied and not returned, should, in ascertaining the it stood over till the hearing. amount of rent, be conclusively deemed, as against Messrs. Clayton & Co., to be the number of machines manufactured and made, or applied by them as aforesaid, but the plaintiff was not to be precluded from shewing by any other means that a greater number of the said machines had been so manufactured, and made or adapted; and also that they would deliver every quarter to the plaintiff an inventory of all the machines so manufactured or applied by them. And the indenture also contained a proviso that the persons representing the firm of Clayton & Co. might, if they elected so to do, extend the term of five years to eight years, by giving to the plaintiff three calendar months' notice in writing prior to the determination of the five years, and if they did so elect, that they would pay a royalty of 27. in lieu of the sum of 17. thereinbefore reserved.

Messrs. Clayton & Co. continued to make and sell the plaintiff's beaters from the date of the license until the expiration of the eight years named therein. No notice in writing, was, however, given to extend the license for the last three years, but the defendants verbally agreed with John Whall, who was mortgagee of the patent, and also for a time solicitor to the plaintiff, for liberty to use it for three years longer at the old royalty, not paying however for machines sold by them to which the invention was not applied.

In the meantime the plaintiff became dissatisfied with the payments made under the license, and pursuant to a power contained in the deed, he sent his bookkeeper, in May, 1862, to look into Messrs. Clayton & Co.'s accounts. He then found that they had been in the habit of supplying beaters to machines which had once paid royalty without paying any fresh royalty thereon.

In June, 1863, the plaintiff also discovered that Messrs. Clayton & Co. had invented a beater, the grooves in which were serpentine or waiving, and not diagonal or transverse to the beater, as those of the plaintiff's were; and in January, 1864, he filed his original bill in this suit against the then members of the firm of Clayton & Co. (two fresh partners having been added since the year 1854), and also against John Whall and Henry Mason, who were respectively mortgagees of the patent, with a prayer for relief as above. This bill charged sales from time to time by Messrs. Clayton & Co., after the date of the expiration of their license, of beaters, whether of a serpentine form or otherwise.

The defendants, by their answer in the supplemental suit, admitted that they had sold about 2000 of the plaintiff's beaters since the expiration of the license, and had exported some of these in lots to Vienna. The evidence shewed that longitudinal grooves upon beaters were used before the plaintiff's invention; and two cases of actual prior user of diagonal grooves were alleged by the defendants, in one instance by a man named Moore, who had nevertheless paid a royalty to the plaintiff, and in another instance by two persons of the name of Teather. One of these persons the plaintiff's counsel proposed on the hearing to crossexamine, but this was not allowed, the suits being upon motion for decree, and no notice having been given; but his Honor having intimated after the argument that he would himself see the Teathers, the defendants in the interval between the hearing and the delivery of judgment, procured the suits to be put into the paper to be spoken to, and then formally withdrew this evidence.

Notice of motion for a decree having been given in the second suit, the two came on to be heard together; and the principal questions were, whether the judgment at law in 1854 was an estoppel; whether the patent was valid, and had been infringed by the defendants; whether under the license they were bound to pay royalty for all beaters supplied by way of renewal or otherwise; and also whether a double royalty was payable for the last three years of the license, no notice having been given to continue it.

Wilcock, Q. C., and Langley, for the plaintiff. — Upon the question of double royalty, they cited Thornton v. Court (3 De G., Mac., & G. 293); and as to the supplemental bill, Crompton v. Wombwell (4 Sim. 628).

Rolt, Q. C., Grove, Q. C., and E. K. Karslake, for the principal defendants, cited Newall v. Elliot (10 Jur., N. S., 954); Foxwell v. Bostock (3 N. R. 546); and Lister v. Leather (8 El. & Bl. 1004; S. C., 4 Jur., N. S., 947).

Eddis and Jessel, for the mortgagees.
Wilcock, Q. C., in reply.

Judgment was reserved.

Feb. 9.-Sir W. P. Wood, V. C.-The bill in this case has a double aspect. It is filed by the patentee of an improvement in thrashing machines against the defendants, as licensees of the patent during a period of eight years, for an account of work done under that license; and, secondly, it is filed against the same defendants, as having infringed the patent, both during A motion for an injunction was made on the 3rd the continuance of the license, and after its expiraMarch, 1864, when, on Messrs. Clayton & Co. under- tion, in two special respects; the one, in having manutaking to keep an account, and to consent to an ap-factured a number of beaters after the plaintiff's inplication to advance the cause, which the Court ex

pressed itself ready to do, the motion was ordered to * See the decision of his Honor on this point, ante, p. 107.

vention, not pursuant to the license; and the other, in | be bound by that judgment, having come in since as having constructed another beater, according to a pa- partners; and also because there was considerable diftent of their own, but which, it is said, is an invasion ficulty upon the form of the judgment, and the mode of the plaintiff's rights under his patent. The de- in which it was taken, in treating it as conclusive. fences have been the usual ones upon questions re- Now, the want of novelty alleged is this-that perlating to patents, independently of the license, namely, sons, of the name of Teather and Moore, had made this that there was want of novelty in the invention; that identical machine before the date of this patent. That, the specification was insufficient; and that the patent of course, would be a very serious case, if proved. was in those respects invalid, besides, of course, a de- [His Honor then went through the evidence on this nial of infringement. part of the case, and came to the conclusion, that the stories of Moore and the Teathers were not to be believed.] These were the only direct cases to impeach the patent in respect of anterior discovery, but the question remains as to whether or not the patent is novel. which depends upon its construction. If the plaintiff has claimed every grooved beater, then he has, without doubt, been anticipated; his own evidence shewing that there were grooved beaters before his was made, that is to say, beaters with longitudinal grooves along their whole length, which did not allow, in the words of the plaintiff's specification, the straw or corn to pass through. On the contrary, the straw and corn lodeing in the longitudinal groove would run in the longitudinal groove, and not pass across the beater, but pass out of the end of the machine. Having, however, construed the plaintiff's specification as I do, namely, a claim simply for tranverse grooves in the beater for the purpose of lodging the corn, and then allowing the corn to pass through, his case is not affected by the longitudinal groove; and this is the only groove which has been brought before me as being an anticipation of the plaintiff's patent, with the exception of several patents brought up in the usual way against the last patentee. All of these, however, appear to me to be of an entirely different construction to the plaintiff's beater; and there is, besides, this strong fact, that these defendants, who are very large machine makers, have used the plaintiff's invention for eight years under a license, being perfectly satisfied, after the investigation which was made at Lincoln, of the machine alleged to be an infringement of the plaintiff's machine, and in which they acquiesced. I have, therefore, no hesitation in saying, that there has been no antiquated patent affecting the plaintiff's claim; and it appears to me that he has established the novelty of his invention, and that there is nothing to invalidate his patent.

Before considering the license, although that comes first in the order of things in the bill, it is, I think, important to consider what the patent really means, in order that we may see more clearly what the license itself means, when we look at the language of that instrument. I may at once say, that the patent is not exceedingly well expressed, though it sufficiently denotes what is claimed by the patentee; and the defend ants have, in fact, been working under a license without any difficulty in ascertaining what was the invention of the plaintiff. It becomes of importance, however, to say precisely what is claimed by the plaintiff, both with regard to the alleged want of novelty and to the construction of the license itself. It appears to me, then, that what the plaintiff really claims is an improved beater for thrashing machines. That is the substance of the whole claim, though the wording of it is, no doubt, peculiar. [His Honor read the specification, as above.] You have there a description of the whole of his invention, and of the object of it. That object is to prevent the mischief done to the straw and grain to a greater extent than it has hitherto been prevented. Conceding, therefore, that other schemes have been invented to prevent this mischief, he proposes to do it in a better manner, by means of placing grooves or channels in the surface of the beater, not any grooves or channels whatever, but of suitable dimensions, to allow of the corn and straw lodging therein and passing through without being injured by the action of the surfaces between, and by which the corn is beaten out. It must be a groove or channel across the beater, so as to enable the corn and grain lying in that groove or channel to pass as it were across the beater without being injured. The drawing makes that very plain, because it shews distinctly diagonal grooves in the beaters. The only awkward part of the expression in his claim is, "I claim as of my invention a thrashing machine, in which the surface of the beaters is grooved or channelled, and the roof perforated as above described." That would almost look like a claim of the perforation of the roof. He has not, however, described that as his invention; but all he says is, that he prefers the perforated roof; and I think that the beater grooved or channelled in the manner described is what he announces as his invention. For he has distinctly said before, that "the various parts of the thrashing machine are well known, and therefore he wishes it to be understood that he does not lay claim to the exclusive use of these several parts, except when employed in connexion with, and for the purposes of, his invention." In other words, he does not claim any other part of a thrashing machine except his grooved beaters.

Before proceeding to the question of infringement on the part of the defendants, I will come to the license, which properly occupied the first part of the plaintiff's bill, as being that on which he first asks for relief. It has to be construed to see to what account the plaintiff is now entitled. We have the license set forth in the original bill. [His Honor stated it.] The first contest seemed rather specious, that the royalty was to be paid per machine, and not per set of beaters which were manufactured; the point of that controversy being, that according to the defendants' contention, if they make a machine, and furnish it with the plaintiff's beaters, and send it out and ticket it with the royalty plates, that machine having once paid royalty, as long as the iron and brass, and other materials which form the drum and the other

This patent the plaintiff enjoyed in an all but un-external parts, last, they may apply as many sets of disputed manner during the period of the fourteen beaters as these other materials will bear; and the years of its existence, and it has been prolonged. The beaters being the things which wear out first, they defendants themselves have taken out a license under might thus furnish them once or several times, as it, so that I was a little surprised that they should the case might be, with new sets of beaters, paying raise the usual defences of want of novelty, and in- only one royalty. It appears to me, that although adequacy in the specification, and so on. I thought, this may be a mode of ascertaining what machines however, they were entitled so to do, notwithstanding have been supplied with the royalty plates, it is the license, because it has expired, and notwithstand-impossible to contend that the license is at all ing, also, the judgment at law, because there were framed with respect to the machines themselves, or some of the defendants who were not, and could not, for anything else than what the plaintiff was enti

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tled to require, namely, a royalty for the use of his license, and could not be; but the argument has been invention, the patent beater. The plaintiff's inven- upon the authorities, that the making of parts of an tion is not for a machine, and the matter becomes invention in this country, and the exportation of those clear when you see in the license that the defend- parts, do not constitute an infringement of a patent ants were for five years to apply, not the plain- for a complicated machine, because those single parts tiff's machines, though they may manufacture ma- do not make the machine-do not make the patented chines, as described in the specification, but they article, and the making of those parts in itself is laware only to apply his invention to other machines. ful; and in exporting them abroad to persons who use They are not only to manufacture machines which them there, and put together all those separate parts themselves contain the plaintiff's invention, but if which may be manufactured here, those persons are machines are brought to be altered, and they apply only doing that which they are entitled to do in their the plaintiff's invention to them, they are to pay own country, and of which the patentee has no right for it. That, therefore, is not so much per machine, to complain, because no machine is made in this counbut so much per machine when supplied with the try which is the plaintiff's machine. That may be so plaintiff's invention. But the real thing they take in those cases where the whole patent was for a new à license for, is to apply the plaintiff's invention to combination of machinery, every part of the maother machines. And there are also these words-chinery being old. If a part of that is new, and is "where the invention is applied wholly or in part," claimed as new, that cannot be made in this country, which must mean to include partial application to a because that in itself would be an infringement of the machine. Take, then, a machine which has once paid patent. In the case that I have before me, the beater royalty, as it is called. That identical machine is is the whole thing claimed, as I have held on the conbrought back with the royalty plate upon it, but you, struction of the patent; and, therefore, the making of can wholly or in part," as the case may be, apply the the beater is a plain and distinct invasion of the paplaintiff's invention. It may be only "in part," but if tent, and in that respect the plaintiff will be entitled you wholly or in part" apply the invention, there, to an account as to the infringement. again, you have got to pay a royalty, and so on from time to time, for any machine existing, or which shall at any time be in existence during the continuance of the patent. It appears to me that on the license there is scarcely any doubt that must be the true conclusion, because the difficulty would be very great indeed, to say, that every time there was a machine brought to the defendants, they might supply a new set of beaters, and go on supplying them ad infinitum as long as the machines would last, for the plaintiff would then have his invention used without having any compensation (and the compensation is admitted to be very moderate) paid to him.

It was stated, however, that there had been some acquiescence by the plaintiff and his mortgagee Mr. Whall in this view. This acquiescence is alleged upon two sets of letters. [His Honor then went through the correspondence, and held, that as mortgagee Mr. Whall probably had acquiesced, but that there had been no acquiescence by the patentee, or by Mr. Whall as his solicitor, and continued.] I think, therefore, the point is remitted to the plain construction of the instrument, which is what I have described; and it is clear to me that the defendants cannot furnish a new machine with these beaters without being liable to pay royalty. The plaintiff waived, and I think properly, for the construction is against him, any claim in respect of royalty for imperfect beaters sent out; for, of course, if an imperfect beater were sent out, and had to be renewed as to a single beater, that is not a case in which the license would come in.

There was a further controversy upon the account as to the rate to be paid. After the five years, on notice being given by the defendants in writing to the plaintiff, they were to have the right of continuing working for three years longer, paying a double royalty. There, I think, the case is against the plaintiff, because no notice was sent, and therefore both sides were free during that time, and might have broken off from the engagement; and that being so, I do not think the case arises in which the additional royalty was to be paid; but the parties must be taken to have been going on, as upon the expired license, until one or the other side chose to put an end to it.

The remaining point is more of the character of infringement, than of royalty. The defendants have made a number of these beaters, without reference to any machine, to supply the foreign market in Austria. It was not contended that that had been done under the

There is another point, however, raised, on which I do not take the plaintiff's view. He says that the defendants have infringed in another way. They have made a beater of their own under their own patent, which has been called for convenience a serpentine grooved beater. [His Honor then stated that he had carefully looked at that beater when it was in court, and also into the patent itself, and that it appeared to him that the difference was sufficient for him to say, that the serpentine beater did not infringe the invention of the plaintiff.]

The only remaining points are this supplemental suit, and the costs. It appears to me, that possibly the plaintiff might have done without the supplemental suit; but I cannot say he was not justified in filing the bill, as it resulted in the discovery of the large number of beaters manufactured and sold by the defendants. As regards the motion, however, before Vice-Chancellor Kindersley, the plaintiff must pay the costs of that, including the adjournment here, as it was wholly unnecessary, regard being had to the state in which the case then stood, and as it turned out to be wholly futile. I think the plaintiff must also pay the costs of that part of the bill in respect of the infringement by the serpentine beater, but in other respects the defendants must pay the general costs of the suit, inasmuch as they have failed in their contest upon the construction of the license, and also upon the important question as to the infringement with regard to the Austrian exportation. The plaintiff will pay the mortgagees' costs, and then have them over.

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